|
Strasbourg, 26 March 2004
|
CDL-JU (2004)027
Eng. only
|
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
in co-operation with
the Constitutional
court of azerbaijan
|
INTERNATIONAL
LEGAL TRAINING
WORKSHOP
Improving Eexamination Methods of
Individual Complaints
Effective Case Management
Effective Decision Drafting
Baku, 26-27 February 2004
REPORT
ON
“Dealing with Individual Complaints:
Experience of the Russian Constitutional Court”
Bakhtiyar Tuzmukhamedov, Russian
Federation |
Dealing with Individual Complaints: Experience
of the Russian Constitutional Court
Introduction
This paper will first introduce the audience in most general terms to
the Russian Constitutional Court and its powers. It will briefly discuss the categories of cases that
the Court may decide. It will then address procedural issues of general
relevance to all petitions and then turn to particulars pertinent to review of
individual complaints. It will finally introduce the audience to several
decisions of the Constitutional Court when specific rights and freedoms of
individuals were at stake.
Jurisdiction
The Constitutional Court of the Russian Federation was first established in 1991 in the wake of
the collapse of the Soviet Union. The sources
of its authority were the Constitution of 1978 when Russia was part of the
USSR, with major amendments introduced immediately prior to, and in the
aftermath of the break-up of the Union,
and the Law “On the Constitutional Court of the Russian Soviet Federal
Socialist Republic” of 1991,
as amended. The Court decided its first case in February 1992. Amidst the power
struggle between the President and the Parliament that reached its violent
climax in the fall of 1993, the Court was in effect suspended
and did not hear cases until March 1995.
Currently the Constitutional Court derives its powers from the Constitution of
1993
and the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” of 1994, as amended.
It is part of the three-tiered judicial system.
But unlike the Supreme Court and the Higher Court of Arbitration that sit at
the apex of pyramids of, respectively, courts of general jurisdiction and
courts of arbitration, the Constitutional Court does not have such a
foundation.
Article 125 of the Constitution and Article 3 of the Law “On the
Constitutional Court” describe categories of cases that may be decided by the
Court.
The first category of cases involves legislative acts passed by public
authorities, whether federal or regional, and only public authorities may
petition the Court. These cases need not arise from any on-going dispute. A
party with due authority may request an abstract review of a statute. When
confronted with such petitions the Court shall rule on the constitutionality of
federal laws and normative acts issued by the President, or by either chamber
of the Federal Assembly, that is Parliament, or by the Government.
The Constitutional Court may also rule on the constitutionality of
constitutions, charters and laws of the component entities of the Russian Federation, as well as on treaties concluded by those
entities with the Federal authorities and between those entities.
Finally, the Court may decide on conformity with the Constitution of
international treaties that have not yet come into force.
The second category comprises cases about jurisdictional disputes
between federal authorities, or between federal and regional authorities, or
between regional authorities.
The third category consists of cases where the Constitutional Court is petitioned by private persons or by
courts requesting a constitutional review of a law that has been applied or
ought to be applied in a particular case. Those will be discussed at greater
length elsewhere in this paper.
It is only natural to expect the supreme judicial body of
constitutional review to interpret the Constitution; however, unlike in some
other jurisdictions, the Russian Constitutional Court may deal with it as an abstract question.
It should also be mentioned that the Constitutional Court would be requested to deliver an advisory
opinion on the observance of a prescribed procedure of impeachment of the
President.
Complaints
As to individual complaints, Art.96 of the Law “On the Constitutional
Court” stipulates that “the right to petition the Constitutional Court of the
Russian Federation with an individual or collective complaint on the violation
of the constitutional rights and freedoms shall be vested in the citizens,
whose rights and freedoms are being violated by the law that has been applied
or ought to be applied in a specific case, and in the associations of citizens,
as well as in other bodies and persons, envisaged in the federal law”.
One may wonder whether the term “citizen” could be interpreted
restrictively implying only Russian citizens. After all the Constitution itself
grants certain rights and freedoms to “everybody”, that is, to citizens of the
Russian Federation, foreign citizens, and stateless persons, while several
rights and freedoms are vested in citizens only. Article 125 of the
Constitution which describes powers of the Constitutional Court, too, refers to “citizens”. However, under
Article 62 (3) of the Constitution “foreign citizens and stateless persons
enjoy in the Russian Federation equal rights and bear equal responsibilities
with the citizens of the Russian Federation, unless provided otherwise by a federal law
or an international treaty of the Russian Federation”. Moreover, several other provisions of the
Constitution which, as combined, provide for a right to a fair trial,
unequivocally refer to “everybody”. It is the latter, broad interpretation of
the term “citizen” that has always been adhered to by the Constitutional Court.
As to “associations of citizens”, that term has evolved through the
practice of the Constitutional Court to embrace a variety of entities. Those may
include non-profit organizations, partnerships, joint-stock associations,
corporations and even municipalities as bodies of local self-government. The
Court now treats federal unitary state enterprises as “associations of
citizens”. The latter concept is founded on the principle of equality of
various types of property, as envisaged in Art. 8 (3) of the Constitution. As a
practical matter, it is not clear which citizens’ rights and what rights could
be at stake when the Court is petitioned by federal unitary state enterprises.
Unlike a joint-stock association, the state enterprise, as the name implies, is
owned by the state rather than by individual stockholders. So far the Court
seems to have drawn a line on the scope of the term “associations of citizens”
by keeping governmental units outside its bounds.
A final observation on Art. 96 of the Law “On the Constitutional Court”
is related to “other bodies and persons” who, too, may petition the Court. So
far the current legislation has expanded the list of petitioners by adding to
it the Prosecutor General
and the Commissioner on Human Rights.
Those two officials are entitled to file complaints with the Court on behalf of
citizens.
The process: a view from the
inside
Let us now look at what triggers off the review process at the Constitutional Court. The Law specifies reasons and grounds for
that, the former being a petition and the latter being an uncertainty about the
constitutionality of an act. The rules that apply to petitions are uniform
whether it is an inquiry on the interpretation of the Constitution filed by the
President or a complaint brought by a citizen N.
A complaint must contain certain information about the petitioner and
his or her representative, the detailed description of a law or an act that is
being disputed, the specifics of a case in which the law has been applied, or
ought to be applied. And of course the complaint must state convincingly
particular grounds for its consideration by the Constitutional Court, as well as the petitioner’s own legal
position and arguments with precise reference to Constitutional provisions.
And, of course, the petitioner should state clearly his or her query addressed
to the Constitutional Court.
A petitioner will be also requested to enclose with the application a set of
document listed in the Law “On the Constitutional Court”, as well as a proof of
payment of the state fee.
The latter requirement deserves a comment. Under the Law “On the
Constitutional Court”, an individual citizen will be charged a nominal fee.
However, the Law entitles a petitioner with low income to be granted either a
reduction of the fee or a full exemption from payment. Should a law or its
provision that is contested by an individual or an association be declared
unconstitutional, then all court costs and expenses borne by a petitioner will
be reimbursed in full.
A veteran staff member’s experience proves that petitions’
sophistication visibly increases as the citizenry is becoming more accustomed
to the Constitutional Court.
That may be explained both by individuals becoming enlightened about the
Court’s jurisprudence, and by legal services becoming more available and
accessible to the general public. That notwithstanding, the Court’s Reception
is receiving dozens of visitors who request assistance in completing their
complaints. In the year 2003 that department of the Court’s Secretariat advised
one hundred and eleven individuals on how best to meet formal requirements to a
complaint. Of course the staff members would never go into the merits of a
question of law posed in a complaint. However, they may provide a visitor with
a detailed explanation of what the Law “On the Constitutional Court” says with
regard to those requirements.
It might be worth mentioning that last year the Reception has received
1267 visitors who showed up at the Court’s door. As that department employs
lawyers and paralegals with extensive experience, they are able to handle most
interviews. Should a case require a particular knowledge, it could be referred
to a staff member with an in-depth expertise in a specific area of law. It is
not unusual for a judge of the Constitutional Court to personally receive a would-be petitioner.
Quite often visitors refer to the Constitutional Court matters that fall outside its jurisdiction,
or which they lack standing to refer. About one quarter would request a review
of judgments that had been handed down by courts of general jurisdiction. Or,
some would demand a review of a legislative act or a Presidential decree, or
request an interpretation of the Constitution. Nevertheless, on particular
occasions the Secretariat would not merely advise a visitor on a more
appropriate course of action, but also assist individuals in securing an
appointment at the Supreme Court, or the Prosecutor General’s Office, or the
Pardon and Citizenship Directorate of the Presidential Administration, or other
governmental institutions, as appropriate. Of course, a referral from the Constitutional Court would add both confidence to a petitioner,
and credibility to his or her query.
Once a petition has arrived to the Court, it will be registered, no
matter whether it meets all formal requirements or not. If it doesn’t, the
petitioner will be notified by the Secretariat accordingly. However, there are
two caveats here. Firstly, a petitioner whose complaint does not meet formal
requirements of the Law, or whose status does not make him or her an
appropriate petitioner, may rectify deficiencies of the original application
and re-submit. Secondly, the Law entitles a petitioner to demand that the Court
itself, rather than the Secretariat, take a decision on the fate of the
petition, its deficiencies notwithstanding.
Petitions that have been screened by the Secretariat will then be
assigned to one or several judges of the Court for a preliminary review.
According to the Law that review must be completed within two months of the
registration of the petition. Following that period the Court will have another
month to decide on admissibility of the petition. Not later than one month
after the Constitutional Court
has decided that a complaint was admissible, the plenary session of the Court
will assign the case to its docket.
While data may vary from year to year, on average the Constitutional
Court of the Russian Federation will receive about 15,000 petitions per
calendar year. Over 97 per cent of those will not pass the test of screening by
the Secretariat. The Court itself will dismiss four hundred or more of those
remaining. Those of course are aggregate numbers that include complaints filed
both by individuals and other petitioners.
Admissibility
To be admissible, a complaint about an alleged violation of the
constitutional rights and freedoms should meet certain requirements derived
from the text of the Law “On the Constitutional Court”. Firstly the petitioner
should question a law passed by the Federal Assembly or a legislature of a
constituent entity of the Federation. Secondly, the law should affect the
rights and freedoms of the petitioner, rather than of a third person. Thirdly,
the rights and freedoms must have their distinct origin in the Constitution.
Fourthly, there should be a specific case, that has already been decided, or
that has been initiated in the court or other law-applying body. Fifthly, it
should be proven that a contested law has been applied or ought to be applied
in a particular case where the petitioner is a party. The burden of meeting
those requirements rests with the petitioner or his or her legal
representative.
In addition to those statutory requirements the Constitutional Court has developed through its own practice certain
criteria it will apply when assessing the admissibility of a complaint. It may
consider a complaint admissible even if a decision of a court of general
jurisdiction or of arbitration was in a petitioner’s favor. Ambiguities of a
contested law that result in its erroneous interpretation and application,
ultimately leading to a violation of a right or freedom may, too, play in favor
of the admissibility of a complaint. On the other hand, dealing with a proven
lacuna in a law, which prevents a petitioner from exercising his or her
constitutional right or freedom, is likely to be referred to the legislator.
Finally, a complaint is unlikely to be admissible if a contested law falls
within the purview of Art. 55 (3) of the Constitution which allows to subject rights
and freedoms to limitations prescribed by a federal law and that are necessary
for the protection of the constitutional order, morals, health, rights and
legitimate interests of others, or to ensure defense of the nation and security
of the state.
Decisions
At this point a brief note on types of decisions that are passed by the
Court might be worthwhile. The Court when deciding a case on its merits will
issue a judgment (postanovleniye). When it rules that a petition is
inadmissible it will issue a ruling (opredeleniye). Some of the latter
may be rather brief and merely state that, for example, a petitioner does not
have standing, or that a question raised in the petition lies beyond the
Court’s jurisdiction. Others may carry more substance and express an
argumentative position of the Constitutional Court on a matter of law. In the Court’s own
unofficial parlance those will be called “rulings with positive content”. A
positive decision on admissibility does not necessarily mean that hearings will
result in a judgment, although most often they do. A decision not to hear a
complaint on its merits may not preclude the Court from issuing a comprehensive
ruling that may contain interpretative statements on the constitutional meaning
of a law, although stopping short of the constitutional review of the latter.
If the Constitutional Court decides that a law or a provision thereof
that has been applied or ought be applied in a specific case is
unconstitutional, courts or other law-applying bodies may no longer apply that
law or provision. Respectively, an outcome of a case heard by the Constitutional Court that may have arisen from a single private
dispute would amount to class action. Other persons whose rights and freedoms
have been affected by the application of a contested law may demand a review of
their cases. To make those demands more convincing, the Constitutional Court has developed a technique that is not
explicitly provided for in the Law “On the Constitutional Court”. The Court may
merge several petitions pertaining to one and the same question of law. It is
not unusual for the Court to merge well over a dozen of petitions filed by
private persons. However, there may be dozens more whose mere listing in a
decision would be unpractical. What the Court does then is this. It admits all
the complaints dealing with the same subject, then merges several to be decided
as a single case, and extrapolates the effects of the judgment on all the rest.
Another technique often employed by the Constitutional Court is to formally dismiss complaints by a
ruling, while clearly stating that a similar matter has been decided by an
earlier judgment which retains its force in full. This method allows the Court
to extend its binding opinion to new petitions without initiating
time-consuming formal procedures.
The Law on the Constitutional Court explicitly requires the Court to officially
publish its judgments and advisory opinions, but not rulings. Therefore, it is
up to the Court itself to decide whether to publish a particular ruling which
leaves unpublished some of them. While most of those are of significance only
to parties that are directly involved in the matter, there are still a few that
may be of interest to a more general audience, but of which it remains largely
unaware.
Sample cases
In the concluding portion of this paper the audience will be introduced
to several decisions of the Constitutional Court that may be illustrative of some of the
techniques used by the Court, as well as of effects of its action. Some of
those resulted from inquiries that have been filed by courts of general
jurisdiction rather than from private complaints. None-the-less, they have been
selected because they originated from private disputes with individual rights
and freedoms being at stake.
Conscientious objectors. The current Russian Constitution, unlike its predecessors, recognizes
conscientious objectors. In Art.59(3) it states that a person is entitled to an
alternative civilian service if by reason of his convictions or religious
beliefs he is opposed to military service, which is compulsory in Russia. The
Constitution allows other grounds for such substitution, however those grounds
need to be specified in a federal law. Eventually the Federal Law “On
Alternative Civilian Service” has been adopted and entered into force on 1 January
2004. But prior to its adoption local draft
boards interpreted that provision of the Constitution restrictively. They
insisted that until the law was enacted a conscientious objector could not
claim his right to an alternative service.
The Constitutional Court received several petitions regarding the
exercise of the right to alternative civilian service. Those petitions were
filed both by draftees and by courts of general jurisdiction that heard cases
that were brought both by and against objectors.
A court of general jurisdiction in Kemerovo District in the East of
Russia was hearing a case of a young man who had been charged with draft
evasion. The defendant was a member of the Jehovah’s Witnesses and refused to
don the uniform while expressly willing to perform an alternative service. The
court questioned the constitutionality a provision of the then effective
Criminal Code of 1960
that in the opinion of the presiding judge violated the right of a citizen to
such service. In a situation when a court has doubts about the
constitutionality of an applicable law, it is entitled to suspend proceedings
and to request the Constitutional Court to review that law.
The Constitutional Court deferred the consideration of the petition
on its merits. However, in what became a “ruling with positive content”
it argued that the disputed provision of the Criminal Code applied to draft
evaders rather than to conscientious objectors. Thus the article of the Code
that made draft evasion a criminal offense did meet the test of
constitutionality. Having said that, the Constitutional Court stated that the absence of a law regulating
the alternative civilian service could not preclude the exercise of a right by
a person who was able to prove that he indeed had convictions or religious
beliefs that made military service unacceptable. Those two grounds for the
exercise of the right are prescribed by the Constitution and do not require any
implementing law.
Without interfering with legislative powers of the Federal Assembly,
the Constitutional Court
used the technique that may be described as a “legislative hint”. With its own
law-making initiative being limited to matters that explicitly fall within its
jurisdiction, the Court highlighted a lacuna that ought to be closed by an
appropriate branch of power. At the same time it instructed other departments
of the Government as to how to apply the provision of the Constitution that
prescribed the right to alternative civilian service.
However, in that, as well as in another decision adopted later that
same year
the Constitutional Court stated that the fact that a draftee did have
convictions or religious beliefs needed to be proven in the court of general
jurisdiction, while other grounds would need to be specified by a law.
Uniformed parents.
Another decision deserves attention both due to its landmark features and
because it was prompted by events that had occurred here in Azerbaijan. One would not find as many servicewomen among
the Russian military as in some Western armies, although their numbers have
certainly grown in recent years. There are few mothers in uniforms, although
the decision that will be discussed affected both mothers and fathers serving
in the military.
Ms.Leukhina had signed a contract with the Ministry of Defense and was
serving as an NCO in a Russian unit deployed in Azerbaijan. She was a mother of two young children who
lived with her. The officer commanding the unit refused to pay her monthly
compensations to support minor dependents. He argued that since the unit was
deployed on the territory of a state with which Russia did not have an agreement on mutual support
of dependents, she was not entitled to compensations provided for by a
respective Russian law.
This audience should be aware that, following the break-up of the USSR in December 1991 Russia adopted into its jurisdiction quite a few
units of the former Soviet Armed Forces that were deployed in what became
territories of new independent states. On the legal side, that required a
tremendous amount of treaty-making work, both on bi-lateral and multi-lateral
levels. A respective treaty that could have been applicable law under the
circumstances in which Ms. Leukhina found herself, was the Agreement on the
Guarantees to Citizens with Regard to Payment of Social Benefits, Compensations
to Families with Children, and Alimony, that entered into force on 12 April
1995.
Both Russia and Azerbaijan signed the Agreement, however the latter,
unlike the former, had never ratified it thus making it ineffective in
relations between the two countries.
The military court that heard the case of that servicewoman asked the Constitutional Court to review the Federal Law “On Government
Compensations to Citizens with Children”. The presiding judge argued that the
Law, by making the compensation conditional on an international agreement,
discriminated against the military serving abroad.
The Constitutional Court stated that it was not the Law, but rather
the practice of its application that had been defective. The obligation of the
State to support parents was unconditional. The burden of that support could be
shared with another state-party to an international agreement. In the absence
of such agreement it was the duty of the Russian Government to pay
compensations in full. The Court further stated that “the special legal status
of the military stems from the need to perform the duty and the obligation of
the citizen of the Russian Federation to defend the Motherland. Hence the
military, location of their duty station notwithstanding, shall be considered
residing in the Russian Federation”.
Legal Assistance in Cases Involving State Secrets. Mr. Alexander Nikitin, a retired naval
officer, signed a contract with a Norwegian environmental group “Bellona” to
perform a study of nuclear safety issues in the Russian Northern Fleet. The
Russian Federal Security Service (counterintelligence) charged him with high
treason alleging that Mr. Nikitin illegally acquired and disclosed secret
information in his analysis. The lawyer he had chosen was barred from the case
on grounds of him not having security clearance. The Federal Security Service
maintained that the Federal Law “On State Secrets” of 1993 required clearance
for a lawyer in a case which involved information classified as secret.
Mr. Nikitin, along with several other petitioners, contested that law as
affecting his rights.
The Constitutional Court found that the interpretation of the Law
practiced by the Federal Security Service violated the right to legal
assistance that was guaranteed by the Constitution. The Court stated that the
role of a lawyer as a party in judicial proceedings as well as the nature of
services he provided to his client were sufficient grounds for a waiver of
regular procedures of authorization of access to secret information. Ironically
under the contested Law, that authorization was performed by the Federal
Security Service. That same agency enjoys almost exclusive investigatory powers
in criminal cases involving state secrets. A lawyer whose client is charged
with high treason would be rather ill at ease if he were obliged to request
security clearance from the Federal Security Service that brought charges
against his client.
The Constitutional Court ruled
that the disputed provision of the Law “On State Secrets” in its literal
meaning did meet the test of constitutionality, while the meaning attributed to
it by the Federal Security Service did not. And, to avoid any further
misinterpretation of that provision, the Court explicitly directed the
lawmakers to introduce a clarifying amendment to the Law.
Eighteen months later the Law was amended to include a provision that
waived the authorization procedure with respect to lawyers whose clients stand
criminal charges involving state secrets, as well as to deputies of both
chambers of the Federal Assembly and to judges.
Of course that would not relieve them of responsibility for disclosure of state
secrets.
In more recent rulings the Constitutional Court extended the effects of that judgment to
proceedings in courts of arbitration
and to civil cases heard in courts of general jurisdiction.
Conclusion
Rather than making a tremendously thoughtful, if not nonsensical
conclusion, let me share with you one theory to which I always introduce my
students and other audiences.
Russian society has had a long history of lack of confidence and trust
in the judiciary that goes back well beyond the 1917 October Revolution which
brought the Communist Party to power. A common perception was that courts
sentenced rather than administered justice. In the Soviet system a person would
try to uphold a right in a regional Communist Party committee rather in a court
of law.
When that system collapsed it left a gap that, in the eyes of public,
had been partially filled by the Constitutional Court. Probably some would rather not notice a
short noun “Court” hidden behind a long adjective “Constitutional”. The new
institution began to receive thousands of petitions that should have been
addressed to other courts or even could have been resolved outside the
judiciary.
The Constitutional Court on its own part often seemed to be inclined
to take an attitude of rather protecting the right of an individual than
upholding a public interest. Even now in the second decade of its existence the
Court has yet to find a way of consistently maintaining the balance between the
two. But I believe those are growing pains that are rather benign as compared
to other maladies of reforming societies.
